Lath v. Manchester Police Department et al
ORDER denying without prejudice 77 Motion for Leave to File Supplemental Complaint. Plaintiffs motion for leave to file a first supplemental complaint, document no. 77, is denied, but without prejudice to Laths filing a Rule 15(d) motion in 16-cv-463-LM So Ordered by Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 16-cv-534-LM
Opinion No. 2017 DNH 087
Manchester Police Department;
Gerald Dufresne; Dorothy
Vachon; BMS CAT; Amica Mutual
Insurance Co.; and Justin
O R D E R
Before the court is a pleading titled “Plaintiff’s Motion
for Leave to File First Supplemental Complaint Pursuant to Rule
For the reasons that follow, that motion is denied.
Lath owns a unit in the Oak Brook Condominium (“Oak
He filed his original complaint in this case on
December 15, 2016.
In it, he named 14 defendants.
On the same
day he filed this action, there was a fire in his unit.
January 25, 2017, Lath filed his First Amended Complaint
(“FAC”), in which he named 17 defendants.
Many of those
remaining defendants, but not all of them, moved to dismiss the
As a result of orders on those motions to dismiss, this
case now consists of: (1) a claim, brought through the vehicle
of 42 U.S.C. § 1983, asserting that the Manchester Police
Department (“MPD”) violated Lath’s federal constitutional right
to equal protection; and (2) state law claims against the MPD,
Dorothy Vachon, Gerald Dufresne, Justin Boufford, Amica, and BMS
Catastrophe, Inc. (“BMS CAT”).1
The following defendants named
in the FAC were dismissed from this case before Lath filed the
motion currently before the court: the Oak Brook Condominium
Owners’ Association (“Association”), Cheryl Vallee, Perry
Vallee, Patty Taylor, Christos Klardie, Betty Mullen, Zenaida
Rodriguez, Warren Mills, Jamie Cox (a/k/a James Mullen), and
See Order (doc. no. 74) 13.
Lath is currently a plaintiff in two other actions in this
In one of them, 16-cv-463-LM, he asserts claims against
the Association under three separate provisions of the federal
Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601-3631.
In his proposed supplemental complaint in this case, Lath
begins by stating that “[t]his action arises out of [the] Fair
Housing Act 42 USC 3601-3619.”
Doc. no. 77-1, at 1.
incorrect; Lath is pursuing FHA claims in 16-cv-463-LM, but has
never asserted any FHA claims in this case.2
Be that as it may,
Lath’s proposed supplemental complaint asserts two claims
Dufresne has been defaulted.
See doc. no. 73.
Thus, it is not beyond the realm of possibility that Lath
actually intended to file the motion now before the court in 16cv-463-LM rather than in this case.
against the City of Manchester, Amica, the Association, Cheryl
Vallee, Perry Vallee, Klardie, Mullen, Taylor, and Vachon.
The first claim in Lath’s proposed supplemental complaint
is captioned: “Failure to provide reasonable accommodation in
violation of [the] Fair Housing Act, 42 USC 3601-3619 et. seq.”
Doc. no. 77-1, at 2.
The factual basis for that claim is the
Association’s failure to respond to multiple requests from Lath
for a reasonable accommodation for his handicaps.
characterizes his handicaps as “depressive and anxiety
disorders, human immuno-deficiency viral infection and pituitary
adenoma, which substantially limits one or more [of his] major
Id. ¶ 3.
The accommodation he sought was the
expedited repair of his unit after the fire.
Lath’s second claim is captioned “Retaliation against
Lath and his friend and caregiver/friend Barbara Belware.”
Proposed Supp. Compl. (doc. no. 77-1) 3.
In his motion, Lath
describes his retaliation claim this way:
Lath is seeking to add additional facts and
allegations relating to additional requests for
accommodations, violation of constitutional rights and
criminal violations, neglect, abuse, exploitation of
[an] elderly, disabled and incapacitated adult, crimes
against Lath, Lath’s properties and/or his caregivers,
household workers, friends, family and relatives all
to further their retaliation towards them for
asserting or attempting to assert the rights granted
to them under [the] Federal Fair Housing Act, [the]
American[s] with Disabilities Act and [the]
Doc. no. 77 ¶ 11.
More specifically, Lath alleges that after
the fire in his unit, defendants committed a variety of acts
that harmed him, in retaliation for his having filed his
complaint in 16-cv-463-LM.
Vachon objects to Lath’s motion.
Amica has joined Vachon’s
None of the other seven entities named as defendants
Lath’s proposed supplemental claims have objected.
But six of
them – all but the MPD – were dismissed from this case before
Lath filed his motion.
II. The Legal Standard
“Rule 15(d) affords litigants a pathway for pleading ‘any
transaction, occurrence, or event that happened after the date
of the pleading to be supplemented.’”
United States ex rel.
Gadbois v. PharMerica Corp., 809 F.3d 1, 4 (1st Cir. 2015)
(quoting Fed. R. Civ. P. 15(d)), cert. denied, 136 S. Ct. 2517
As for the application of Rule 15(d), the court of
appeals has explained:
Rule 15(d) contains no standards at all to guide the
district court’s analysis; it merely authorizes the
district court to permit service of a supplemental
pleading “on just terms.” In an effort to fill this
vacuum and in keeping with the overarching flexibility
of Rule 15, courts customarily have treated requests
to supplement under Rule 15(d) liberally. See, e.g.,
Walker v. United Parcel Serv., Inc., 240 F.3d 1268,
1278 (10th Cir. 2001). This liberality is reminiscent
of the way in which courts have treated requests to
amend under Rule 15(a)’s leave “freely give[n]”
standard. See, e.g., Glatt v. Chi. Park Dist., 87
F.3d 190, 194 (7th Cir. 1996); Quaratino v. Tiffany &
Co., 71 F.3d 58, 66 (2d Cir. 1995); Mueller Co. v.
U.S. Pipe & Foundry Co., 351 F. Supp. 2d 1, 2 (D.N.H.
Gadbois, 809 F.3d at 7.
In the last analysis, a district court faced with a
Rule 15(d) motion must weigh the totality of the
circumstances, just as it would under Rule 15(a). See
Palmer v. Champion Mortg., 465 F.3d 24, 30–31 (1st
Cir. 2006). Idiosyncratic factors — say, the futility
of supplementation, see Haggard v. Bank of the Ozarks,
Inc., 668 F.3d 196, 202 (5th Cir. 2012) (per curiam);
Motorola Credit Corp. v. Uzan, 388 F.3d 39, 65 (2d
Cir. 2004), prejudice to the opposing party, see
Walker, 240 F.3d at 1278–79, and unreasonable delay in
attempting to supplement, see Glatt, 87 F.3d at 194 —
may suffice to ground a denial of a Rule 15(d) motion.
Everything depends on context.
Id. (footnote omitted).
“[W]hile leave to permit a supplemental pleading is
favored, it cannot be used to introduce a separate, distinct and
new cause of action.”
Polansky v. Wrenn, No. 12-cv-105-PB, 2013
WL 1165158, at *2 (D.N.H. Feb. 22, 2013) (quoting In re Exxon
Valdez, 318 F. App’x 545, 547 (9th Cir. 2009); citing Planned
Parenthood of S. Ariz. v. Neely, 130 F.3d 400, 402 (9th Cir.
1997)), R. & R. adopted by 2013 WL 1155429 (D.N.H. Mar. 19,
2013); see also Williams v. Lackawanna Cty. Prison, No. 1:12-CV02274, 2016 WL 1393383, at *2 (M.D. Pa. Apr. 8, 2016) (“A
supplemental pleading cannot be used for the purpose of trying a
new matter or a new cause of action.”).
That said, “[a] supplemental pleading may include a new
cause of action . . . if a relationship exists between the
original complaint and the later accruing material.”
2013 WL 1165158, at *2 (quoting Petro–Hunt, L.L.C. v. United
States, 105 Fed. Cl. 37, 44 (Fed. Cl. 2012); citing 6A Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure § 1504, at 253 (3d ed. 2010)) (internal quotation
On the other hand:
‘[W]hen the matters alleged in a supplemental pleading
have no relation to the claim originally set forth and
joinder will not promote judicial economy or the
speedy disposition of the dispute between the parties,
refusal to allow the supplemental pleading is entirely
justified.’ Wright & Miller, Federal Practice &
Procedure: Civil § 1506 at 551 (1971). . . .
Further, granting a motion for leave to file a
supplemental complaint is within the sound discretion
of the trial court. Factors to be considered by the
court in making this determination include the
promotion of a justiciable disposition of the case,
the delay or inconvenience to permitting the plaintiff
to supplement the complaint, and any resulting
prejudice to the other parties in the action.
Nottingham v. Peoria, 709 F. Supp. 542, 544 (M.D. Pa.
1988). It has been held that a court may deny leave
to file a supplemental complaint where the new
proposed pleading related only indirectly to the
original complaint and the new alleged cause of action
arose from a body of facts unrelated to those set
forth in the original complaint. Id.
Williams, 2016 WL 1393383, at *2.
The principles articulated in Polansky and Williams counsel
in favor of denying Lath’s motion to for leave to supplement his
complaint; given the status of Lath’s FAC when he filed his
motion, there was not an adequate relationship between the FAC
and the later accruing material that Lath seeks to add to it.
In broad strokes, the claims remaining in this case when Lath
filed his motion pertain to: (1) actions or inactions by the MPD
that are unrelated to the fire in Lath’s unit or its aftermath;
(2) actions by Dufresne, Boufford, and Vachon that are unrelated
to the fire or its aftermath; (3) actions by Lath’s post fire
clean up contractor (BMS CAT); and (4) actions by Lath’s insurer
(Amica) during the course of responding to the claim he made as
a result of the fire.
Now, Lath seeks to supplement his
complaint with: (1) an FHA claim arising from the Association’s
alleged failure to respond to his request for expedited repairs
after the fire;3 and (2) an FHA retaliation claim.
While Lath’s claims against BMS CAT and Amica arise from
actions those entities took in response to the fire, the legal
The court appreciates that the Association might face FHA
liability for failing to expedite repairs to Lath’s unit, a
matter on which the court offers no opinion. But Lath’s
proposed supplemental complaint does not explain how any of the
other defendants he names in his proposed FHA claim could have
liability under the FHA.
obligations of BMS CAT and Amica are entirely distinct from the
Association’s legal obligations.
Thus Lath’s claims against BMS
CAT, Amica, and the Association arise from three unrelated
bodies of facts, i.e., the actions each entity took to meet
legal obligations resulting from the fire.
The fact that each
entity was responding to obligations resulting from the same
fire is a factual coincidence of no legal significance.
best, the claims against those three entities are only
indirectly related, which justifies denial of Lath’s motion.
See Williams, 2016 WL 1393383, at *2.4
Denial of Lath’s motion, however, is not quite the end of
There remains the question of whether Lath might
still be able to assert the FHA claims he cannot add to this
case, and if so, how.
Useful guidance on that question is
provided by Hanson v. N.H. State Prison Literary Review
Committee, No. 14-cv-132-SM, 2015 WL 2206337 (D.N.H. May 11,
To be sure, in his FAC, Lath asserted contractual and
common law claims against the Association arising from its
allegedly tardy repair of his unit, and tardy repair might be
part of the same body of facts that supports Lath’s proposed FHA
claim, which is based upon the Association’s failure to respond
to his request for expedited repair. But Lath’s state law
claims against the Association were dismissed from this case
before Lath moved to assert his proposed FHA claims, which means
that Lath’s state law claims against the Association were no
longer available as a basis for establishing a relationship
between the FAC and the proposed FHA supplemental claims by the
time Lath moved to supplement his FAC.
In Hanson, Judge McAuliffe denied a motion to supplement a
complaint in part because the defendant against whom the
plaintiff sought to assert new claims had been dismissed from
See 2015 WL 2206337, at *4.
However, that denial was
“without prejudice to Hanson’s ability to bring those claims in
a new civil case before the court.”
Here, too, the
court’s denial of Lath’s motion is without prejudice.
given the particular circumstances of this case, rather than
directing Lath to file yet another action, the court denies his
motion without prejudice to his filing a Rule 15(d) motion in
That case already includes several claims under
the FHA, and seven of the nine defendants against whom Lath
sought to bring supplemental claims in this case are defendants
For the reasons detailed above, plaintiff’s motion for
leave to file a first supplemental complaint, document no. 77,
is denied, but without prejudice to Lath’s filing a Rule 15(d)
motion in 16-cv-463-LM.
Moreover, he may do so without seeking
As for the other two, the MPD and Amica, the court notes
in passing that it is hard pressed to see how either of those
entities could possibly be liable for failing to provide Lath
with an accommodation he requested from the Association, or
could be liable for retaliating against him for filing a
lawsuit, 16-cv-463-LM, in which they were not named as
leave from the court pursuant to the procedural orders in that
United States District Judge
May 4, 2017
Gary M. Burt, Esq.
Sanjeev Lath, pro se
Bruce Joseph Marshall, Esq.
Sabin R. Maxwell, Esq.
Robert J. Meagher, Esq.
Richard C. Nelson, Esq.
James G. Walker, Esq.
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